PRESENTATION TO PARLIAMENTARY PORFOLIO COMMITTEE ON DEFENCE & MILITARY VETERANS MILITARY OMBUD: LT GEN (RET) T.T. MATANZIMA 12 MARCH 2014

MILITARY OMBUD SCOPE 1.Background 2.Mandate 3.Performance/Statistics 4. Operational Challenges 5.Legislative Challenges 6.Conclusion 2

MILITARY OMBUD BACKGROUND The concept of the Military Ombud was first contemplated in the late 1990’s as: a)An independent, external mechanism to deal with the complaints and grievances of members and former members of the SANDF; and b)A place for the public to lodge complaints about the conduct of soldiers. The White Paper on Defence (May 1996) advocated for the creation of the post of Military Ombud. 3

MILITARY OMBUD BACKGROUND CONT. As there was no Military Ombud a Senior Legal Administration Officer in the Office of the Public Protector was responsible for dealing with complaints from SANDF members. This proved to be largely ineffective. Minutes of proceedings of the Joint Standing Committee of Defence of June 1998, show a premium was placed on the urgency of establishing such an Office. 4

MILITARY OMBUD BACKGROUND CONT. In April 2006, a Bill entitled “South African Military Ombud” was tabled and withdrawn. A Military Ombudsman Bill was introduced to the National Assembly in Jan The Military Ombud Bill as amended and in its present form was introduced in Sept

MILITARY OMBUD BACKGROUND CONT. The Office was established with the promulgation of the Military Ombud Act 4 of 2012 and the swearing in of Lt Gen (Ret) T.T. Matanzima, May The Military Ombud has relocated to its new premises in Centurion which was officially opened on 14 May

MILITARY OMBUD BACKGROUND CONT. The Office has completed its first recruitment phase with all successful candidates having reported for duty before the end of the 2012/2013 financial year. The Director Intake, 3 Intake Officers, 2 Analysts and 2 Investigators started operating in March The second recruitment phase began in May The Chief Director Operations and Director Investigations joined during August 2013 and September 2013 respectively. 7

MILITARY OMBUD BACKGROUND CONT. This phase was completed and all successful candidates reported for duty on 1 October A further 3 intake officers, 3 analysts and 2 investigators, as well as some admin support staff, joined operations on 1 October Prior to the staffing of the office, the Ombud appointed a law firm to attend to the complaints that were streaming in. 8

MILITARY OMBUD BACKGROUND CONT. The third recruitment phase is currently underway with advertisements having been posted on national newspapers in December The next line of interviews will be held early March The current strength of the office is 44 staff members. The current total structure provides for 89 positions. 9

MILITARY OMBUD BACKGROUND CONT. 10

MILITARY OMBUD MANDATE The Military Ombud Act empowers the Military Ombud investigate complaints by: a)A member regarding his or her conditions of service; b)A former member regarding his or her conditions of service; c)A member of the public regarding the official conduct of a member of the Defence Force; or d)A person acting on behalf of a member. 11

PERFORMANCE INFORMATION PER COMPLAINTS’ CATEGORY FY 12/13 12 CATEGORY WITHIN MANDATE NO MANDATE TOTAL RECEIVED TOTAL FINALISED Promotion, Demotion and Rank Review Utilisation Service benefits ETD7295 Remuneration Grievance / Discipline0111 Service termination Other73100 Total

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 12/13 13 GENDERRACE CATEGORYMFUACIWU Promotion, Demotion and Rank Review Utilisation Service benefits ETD Remuneration252018O081 Grievance / Discipline Service termination Other Total

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 12/13 14 COMPLAINANT CATEGORYMEMBERFORMERPUBLIC Promotion, Demotion and Rank Review 6412 Utilisation2874 Service benefits28377 ETD900 Remuneration2520 Grievance / Discipline100 Service termination18585 Other514 Total

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 12/13 15 OFFICERSOTHER RANKS REMAINDER CATEGORYGENSNRJNRWONCOCIVU Promotion, Demotion and Rank Review Utilisation Service benefits ETD Remuneration Grievance / Discipline Service termination Other Total

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 12/13 16 SERVICES AND DIVISIONS CATEGORYJ OPSARMYSAAFNAVYSAMHS Promotion, Demotion and Rank Review Utilisation Service benefits ETD02104 Remuneration Grievance / Discipline00001 Service termination Other12400 Total

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 12/13 17 SERVICES AND DIVISIONS CATEGORYCCSHRLOGFMDDEF INT Promotion, Demotion and Rank Review Utilisation11001 Service benefits00120 ETD00000 Remuneration11100 Grievance / Discipline00000 Service termination31122 Other00000 Total933103

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 12/13 18 SERVICES AND DIVISIONS CATEGORYDLSDDEISMPUBLICU Promotion, Demotion and Rank Review 0000 Utilisation0012 Service benefits0030 ETD2000 Remuneration0002 Grievance / Discipline0000 Service termination0000 Other0030 Total2074

PERFORMANCE INFORMATION PER COMPLAINTS’ CATEGORY FY 13/14 (UP UNTIL 31 JANUARY 2014) 19 CATEGORY BROUGHT OVER 12/13 WITHIN MANDATE NO MANDATE TOTAL RECEIVED TOTAL FINALISED Promotion, Demotion and Rank Review Utilisation Service benefits ETD44085 Remuneration Grievance / Discipline Service termination Other Total

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 13/14 20 GENDERRACE CATEGORYMFUACIWU Promotion, Demotion and Rank Review Utilisation Service benefits ETD Remuneration Grievance / Discipline Service termination Other Total

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 13/14 21 COMPLAINANT CATEGORYMEMBERFORMERPUBLIC Promotion, Demotion and Rank Review 2962 Utilisation1458 Service benefits ETD400 Remuneration1852 Grievance / Discipline400 Service termination22390 Other1195 Total

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 13/14 22 OFFICERSOTHER RANKS REMAINDER CATEGORYGENSNRJNRWONCOCIVNR Promotion, Demotion and Rank Review Utilisation Service benefits ETD Remuneration Grievance / Discipline Service termination Other Total

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 13/14 23 SERVICES AND DIVISIONS CATEGORYJ OPSARMYSAAFNAVYSAMHS Promotion, Demotion and Rank Review Utilisation Service benefits ETD00103 Remuneration Grievance / Discipline04000 Service termination Other Total

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 13/14 24 SERVICES AND DIVISIONS CATEGORYCCSHRLOGFMDDEF INT Promotion, Demotion and Rank Review Utilisation00000 Service benefits00000 ETD00000 Remuneration00000 Grievance / Discipline00000 Service termination00000 Other00100 Total31110

ANALYSIS OF COMPLAINTS SUBMITTED IN FY 13/14 25 SERVICES AND DIVISIONS CATEGORYDLSDDEISMPUBLICU Promotion, Demotion and Rank Review 0000 Utilisation0034 Service benefits00155 ETD0000 Remuneration0011 Grievance / Discipline0000 Service termination0001 Other0008 Total0019

MILITARY OMBUD OPERATIONAL CHALLENGES Finalising the case load accumulated during FY 2012/13. Empowering newly appointed staff with the uniqueness of the military environment in order to operate efficiently. The lack of a case management system results in non-value adding labour. Lack of fully functioning ICT capacity. Cementing new operating procedures to finalise complaints. Complainants are uninformed in the role and functioning of the Ombud. Lack of optimally functioning grievance process in the DOD. 26

MILITARY OMBUD LEGISLATIVE CHALLENGES Who can Complain? Section 1 of the Act does not define a “complaint” or a “complainant” This poses a difficulty for actual complainants and for the long term functioning of the office and brings uncertainty as to who can be regarded as a complainant in terms of the Act. Section 4 of the Act states that a member may lodge a complaint. The term “member” is defined in section 1 of the Act as bearing the same meaning as that of section 1 of the Defence Act of

MILITARY OMBUD LEGISLATIVE CHALLENGES Who can Complain? Section 1 of the Defence Act refers to a member in relation to the Defence Force as any officer and any other rank and to any person of a visiting force and civilians employed under that visiting force. “Defence Force” is defined in the Defence Act as the South African National Defence Force as contemplated in section 11 and includes any portion of that Force, with section 11 making reference to regular force members and reserve force members. Notably members of the erstwhile statutory and non-statutory forces are excluded from this section. 28

MILITARY OMBUD LEGISLATIVE CHALLENGES Who can Complain? Section 4 (1) (c) of the Act refers to a complaint lodged by a member of the public regarding the official conduct of members of the Defence Force. The omission to define the words “official conduct” may seem to incorporate a broad range of issues within the administration of the Department of Defence, i.e. maladministration, undue delay, abuse of power, etc. 29

MILITARY OMBUD LEGISLATIVE CHALLENGES Who can Complain? Currently, this section is interpreted as indicated above and includes a complainant who may have a complaint against a member of the Defence Force who, in terms of a law or an inter state agreement, is stationed for peace keeping purposes in another state. Section 4 (1) requires sufficient clarity. 30

MILITARY OMBUD LEGISLATIVE CHALLENGES A reasonable time to lodge a complaint? Section 7 (2) (c) of the Act provides the Ombud with a discretion to refuse to investigate a complaint if it was not lodged within a reasonable period of time. As a result what is considered to be reasonable is within the power of the Ombud to regulate. In view of the nature of the investigations conducted the following is considered to be reasonable : 31

MILITARY OMBUD LEGISLATIVE CHALLENGES A reasonable time to lodge a complaint? a)A member or former member must lodge a compliant within 180 days from the day on which the complainant became aware of the act or omission complained of. b)A member of the public must lodge a complaint about the official conduct of a member within 90 days from the day on which the member of the public became aware of the act or omission complained of. c)A complaint lodged after the prescribed time periods may be condoned by the Ombud if adequate reasons are provided for non-compliance with the above (reference will be made to the relevant sub-regulation) 32

MILITARY OMBUD LEGISLATIVE CHALLENGES A reasonable time to lodge a complaint? In the absence of Regulations to give effect to this the Ombud currently accepts all jurisdictional matters, including those from members of the previous statutory and non-statutory forces. The difficulty experienced is that of locating the required evidence, information and relevant witnesses to assist a complainant who may have a complaint that dates as far back as

MILITARY OMBUD LEGISLATIVE CHALLENGES Independence and Impartiality Independence is key to ensuring the efficiency, effectiveness and credibility of the institution. The Ombud’s independence is one of its main strengths and a source of trust. As a result the Ombud should have both institutional and operational independence. 34

MILITARY OMBUD LEGISLATIVE CHALLENGES Institutional Independence Currently the budget of the office is ring-fenced within the defence budget. Therefore funds cannot be managed independently from the Department of Defence. This creates several difficulties as the Office is not in complete control of its budget as it has to comply with and be accountable to the departmental process structures for all resource requirements. The submissions made to the Defence Review of 2011 requested that the Ombud be the accounting authority for the Office and further that the Office be registered as a PFMA Schedule 3 Entity. 35

MILITARY OMBUD LEGISLATIVE CHALLENGES Institutional Independence Parliament’s Analysis of the Military Ombuds Bill of 2011, as compiled by the Research Unit in July 2011, indicated that section 9 places an onerous obligation on the Military Ombud and as a result a suitably qualified and experienced person as chief executive officer of the Military Ombud should be appointed to assist the Ombud subject to his or her direction and supervision in the performance of all financial and administrative functions in terms of the Act. 36

MILITARY OMBUD LEGISLATIVE CHALLENGES Institutional Independence These significant suggestions speaking to the independence of the Ombud were however not all taken further. As a result of the difficulties experienced as far as the institutional independence of the Ombud is concerned, steps have been embarked on to address the organisational and other requirements for the registration of the office as a Schedule 3 Entity. 37

MILITARY OMBUD LEGISLATIVE CHALLENGES Operational Independence Section 6 (5) (b) of the Act states that after investigating a complaint the Ombud must recommend an alternate resolution to the Minister. The recommendations route taken in the Act leaves the Ombud powerless with regard to the inability to enforce his recommendations. This is proving to be an obstacle in the effectiveness of the Ombud as, once approved by the Minister, the perception exists that implementation of recommendations are negotiable. 38

MILITARY OMBUD LEGISLATIVE CHALLENGES Operational Independence No mechanism exists to have the Department of Defence account for the non-implementation of recommendations. Another mechanism that is sure to guarantee independence of the Ombud is the capacity to undertake investigations under own initiative which currently section 6 of the Act does not make provision for. 39

MILITARY OMBUD LEGISLATIVE CHALLENGES Operational Independence This ensures an Ombud who is proactive and who can act or pursue issues without having to wait for a complaint to redress wrongs as well as systemic issues which may be inherent in the system. 40

MILITARY OMBUD CONCLUSION On a point of information, the Regulations are in its draft stages, comment and legal analysis have been received from the Chief State Law Advisors and it is hoped to be finalised as soon as possible. Despite the challenges highlighted above, we are grateful for the support and co-operation of the SANDF/DOD. We are confident that the Office is fully operational and it can only get better from here. 41

MILITARY OMBUD CONCLUSION CONT. A quote from the Handbook for Ombuds Institutions for the Armed Forces, “Ombuds Institutions play a crucial role in ensuring the armed forces operate with integrity and in a manner which is both accountable and transparent. By handling individual complaints, as well as through the exploration of thematic and cross-cutting issues, ombuds institutions help to prevent human rights abuses, eliminate waste and malpractice and contribute to the overall good governance of the security sector.” 42